Washington state admits “sex trafficking” law is unconstitutional

The state of Washington has abandoned its defense of legislation passed earlier this year that could have exposed website operators to legal liability if they inadvertently hosted advertisements for child prostitution. The Internet Archive, represented by the Electronic Frontier Foundation, challenged the legislation in June. They argued that the law was unconstitutionally broad and that it conflicted with Section 230 of the Communications Decency Act, which grants website providers broad immunity against liability for hosting material posted by third parties.

The legislation, known as SB 6251, was designed to fight the sexual exploitation of minors. But critics said language criminalizing the dissemination of advertisements which include "an explicit or implicit offer for a commercial sex act to occur in Washington" went too far. The Internet Archive worried that such ads could effectively make its archives of the Web illegal, since some websites included in the archives could fit the law's definition of material soliciting prostitution. So it joined a lawsuit by Backpage.com, which was also challenging the law.

A federal judge temporarily blocked enforcement of the law in July while litigation over the issue played out in the courts. Now Washington state officials have agreed to drop their defense of the law. They have asked the judge overseeing the case to permanently block the law's implementation.

And that's not all. The state will pay $200,000 to defray the plaintiffs' legal expenses, and Washington state attorney general Rob McKenna will "work with the Washington State Legislature to repeal the current unconstitutional version" of the law.

"Threatening to throw service providers in jail for what their users say or do is misguided, incredibly harmful to online free expression generally, and violates federal law," EFF lawyer Matt Zimmerman said in a Thursday blog post. "We are grateful that the state of Washington has agreed that this statute cannot and will not be enforced against the Internet Archive or anyone else."

Amazing that time and time again, the power to shape our technological world is rested in the hands of complete luddites who only care about scare-induced election victories...

Im not sure that is really an accurate description of what happened here. Although the efforts were misguided in this case, i think the desire to reduce child prostitution is not unreasonable. At a minimum, i dont think that the proponents of SB 6251 are necessarily luddites nor do I think its at all obvious that they only care about "scare-induced election victories". Its at least as possible that they were well intentioned but unthinking.

Its also worth noting that, in this case at least, " the power to shape our technological world" actually rests in the hands of the courts and people like the EFF who (in my opinion) over turned this portion of the bill. That was the point of the whole article, that the unconstitutional portions of that law got defeated.

I wonder if states bother to consult with any actual tech experts about these things first.

Im not sure what a tech expert could tell you in this case, this strikes me as entirely a legal question.

It's a tech question, because the reasons it's impossible/chilling are technical. Granted, you don't have to be all that technical to understand the problem, but there are still plenty of legislators who don't understand the internet at all. They are used to crazy laws being naturally restrained by the logistics of the real world, and don't understand that when you take away those logistics it's a lot harder to just "be reasonable".

I wonder if states bother to consult with any actual tech experts about these things first.

Im not sure what a tech expert could tell you in this case, this strikes me as entirely a legal question.

It's a tech question, because the reasons it's impossible/chilling are technical. Granted, you don't have to be all that technical to understand the problem, but there are still plenty of legislators who don't understand the internet at all. They are used to crazy laws being naturally restrained by the logistics of the real world, and don't understand that when you take away those logistics it's a lot harder to just "be reasonable".

The reason this law was stuck down were because it conflicts with Section 230 of the Communications Decency Act and the constitution generally, i dont see how consulting a tech expert would have helped in this case. Maybe there are plenty of legislators who dont understand the internet, but a tech expert is not going to be in any position to advise them when a law is unconstitutional or conflicts with another law. This was a legal question, getting the internet just doesnt enter into it, in my opinion.

I don't get it. Is it really that hard to not show advertisements for child prostitution? There appear to be some technical aspects of this that are not being made explicit in the article or the comments.

Another great victory for the EFF! Challenges like these are why the EFF is the only national charity I give to. You can read the headlines and actually see them working to protect our digital rights.

Not the only charity I give to, but I've been doing so for awhile, and they seem to be very effective.So let me echo and amplify: EFF runs on contributions, and here we are at the giving season.https://supporters.eff.org/

I don't get it. Is it really that hard to not show advertisements for child prostitution? There appear to be some technical aspects of this that are not being made explicit in the article or the comments.

This was somewhat explained in the past article on the subject (which is linked to in this article). I don't believe (albeit I may be wrong as I haven't gone through the bill) it narrowly enough defined what constitutes an advertisement not to mention the language used within the bill doesn't specify the "commercial sex" ad require mention of a minor: http://arstechnica.com/tech-policy/2012 ... ts-tracks/

An example of harm would be:

Previous Ars article wrote:

Last month, the Electronic Frontier Foundation filed a motion to the court on behalf of the Internet Archive to stop the law, arguing it was overbroad as written. The EFF argued that because the Internet Archive might have unknowingly cached a sex ad, it could be liable for prosecution.

Unless I'm mistaken, if you were to visit a webpage which then loaded a image of child pornography into your browsers cache (you don't even need to display the image for this to happen). Then your computer were confiscated and scanned by authorities, which allowed them to find such file, wouldn't you be charged of being in possession of child pornography? While I absolutely abhor CP, don't these two laws fit under the same category in this regard?

Unless I'm mistaken, if you were to visit a webpage which then loaded a image of child pornography into your browsers cache (you don't even need to display the image for this to happen). Then your computer were confiscated and scanned by authorities, which allowed them to find such file, wouldn't you be charged of being in possession of child pornography? While I absolutely abhor CP, don't these two laws fit under the same category in this regard?

Essentially, yes. From the discussion the last time that this came up it sounds like most of us would probably be in a position to be charged if someone really wanted to go to the effort.

I remember when it came up I did a search of my computer and found that I had almost hundred thousand image files stored on it. A good chunk were images used by programs and games, and a larger chunk were photographs that my wife and I have taken over the years. Most of what was left was divided between crap I'd saved off the net like cute animal gifs and wallpapers, and cached images from browsing. As I said in that thread, I wouldn't want to make the bet that out of the hundred or so thousand image files I have, none of them could be found to be questionable. It would be trivially easy to cache something in such a way that anyone targeted would have no way to know that it's on their computer unless someone knew what to look for.

Really, the main thing that keeps you safe from such an attack is lack of interest. No one cares enough to nail you, but they probably could if they wanted to. It's probably not worth worrying about though, you'd have to piss someone off pretty badly for them to want to pull something like that.

Amazing that time and time again, the power to shape our technological world is rested in the hands of complete luddites who only care about scare-induced election victories...

Im not sure that is really an accurate description of what happened here. Although the efforts were misguided in this case, i think the desire to reduce child prostitution is not unreasonable. At a minimum, i dont think that the proponents of SB 6251 are necessarily luddites nor do I think its at all obvious that they only care about "scare-induced election victories". Its at least as possible that they were well intentioned but unthinking.

Its also worth noting that, in this case at least, " the power to shape our technological world" actually rests in the hands of the courts and people like the EFF who (in my opinion) over turned this portion of the bill. That was the point of the whole article, that the unconstitutional portions of that law got defeated.

Excellent reply. This bill wasn't an attempt at unconstitutional censureship, it was aimed specifically at certain sites like backpages.com that refuse to do even the minimal amount of screening of thier personals to try and keep pimps from selling children for sex. This has been a major problem in Washington and Oregon, and both states have been trying to combat it on multiple fronts.

I agree that this law was overly broad, and badly written. But the efforts need to continue and are worth pursuing. Unlike many 'think of the children' bills, this was not something completely unrelated that then had a child protection angle tacked on, this bill was explicitly about child sex advertising.

Unless I'm mistaken, if you were to visit a webpage which then loaded a image of child pornography into your browsers cache (you don't even need to display the image for this to happen).

And this is an excellent reason why you should flush the cache on shut-down of your browser.

Not only does it free up space you don't really need to be using, it's also not particularly necessary to save that information unless your computer or your connection are dinosaurs.

Even the most innocuous Google image search can turn up some notably questionable material.

Otherwise, I really do believe that laws that are so utterly unconstitutional that they should never have made it to a vote, much less passed, should carry some risk to the lawmakers responsible for not doing their homework. The states waste billions of taxpayer dollars (not to mention time) that could be put to better use.

Really, the main thing that keeps you safe from such an attack is lack of interest. No one cares enough to nail you, but they probably could if they wanted to. It's probably not worth worrying about though, you'd have to piss someone off pretty badly for them to want to pull something like that.

I have to respectfully disagree. Any law that could be so easily abused shouldn't exist. As a web developer, I can tell you it is trivial to plant incriminating files on your computer. Generating "interest" in a target is easy enough as well. The problem with CP laws is that even if you were found not guilty of seeking it out, or even viewing it, you'll still be ridiculously charged for having it on your computer.

Really, the main thing that keeps you safe from such an attack is lack of interest. No one cares enough to nail you, but they probably could if they wanted to. It's probably not worth worrying about though, you'd have to piss someone off pretty badly for them to want to pull something like that.

I have to respectfully disagree. Any law that could be so easily abused shouldn't exist. As a web developer, I can tell you it is trivial to plant incriminating files on your computer. Generating "interest" in a target is easy enough as well. The problem with CP laws is that even if you were found not guilty of seeking it out, or even viewing it, you'll still be ridiculously charged for having it on your computer.

I'm certainly not suggesting that the laws aren't insane, or that they shouldn't be changed. They are and they should be. That I could put most of you at risk of a jail sentence by linking a few images and then alerting the authorities that someone was sharing CP on this thread should be evidence enough that the laws are broken.

What I was suggesting was that you shouldn't panic about it and go zero-filling your drive every week or go building a 10 Tesla electromagnet around your case out of paranoia. If you did build a 10 Tesla electromagnet in your home that would be cool though.

I wonder if states bother to consult with any actual tech experts about these things first.

Im not sure what a tech expert could tell you in this case, this strikes me as entirely a legal question.

It's a tech question, because the reasons it's impossible/chilling are technical. Granted, you don't have to be all that technical to understand the problem, but there are still plenty of legislators who don't understand the internet at all. They are used to crazy laws being naturally restrained by the logistics of the real world, and don't understand that when you take away those logistics it's a lot harder to just "be reasonable".

The reason this law was stuck down were because it conflicts with Section 230 of the Communications Decency Act and the constitution generally, i dont see how consulting a tech expert would have helped in this case. Maybe there are plenty of legislators who dont understand the internet, but a tech expert is not going to be in any position to advise them when a law is unconstitutional or conflicts with another law. This was a legal question, getting the internet just doesnt enter into it, in my opinion.

If the people that make the fucking laws can't tell when one law conflicts with another, it's not unreasonable to assume that the people who's job it is to work under those laws might be in a better position to know.

Amazing that time and time again, the power to shape our technological world is rested in the hands of complete luddites who only care about scare-induced election victories...

Im not sure that is really an accurate description of what happened here. Although the efforts were misguided in this case, i think the desire to reduce child prostitution is not unreasonable. At a minimum, i dont think that the proponents of SB 6251 are necessarily luddites nor do I think its at all obvious that they only care about "scare-induced election victories". Its at least as possible that they were well intentioned but unthinking.

Its also worth noting that, in this case at least, " the power to shape our technological world" actually rests in the hands of the courts and people like the EFF who (in my opinion) over turned this portion of the bill. That was the point of the whole article, that the unconstitutional portions of that law got defeated.

Yes, I'm sure it was a huge surge in child prostitution that prompted this poorly written and hastily executed bill, and the fact that it was passed a few months before an important and contentious super-election was merely a coincidence. And poorly informed or blatantly self-serving legislation has never had any serious effect on our "our technological world."

I don't get it. Is it really that hard to not show advertisements for child prostitution? There appear to be some technical aspects of this that are not being made explicit in the article or the comments.

Basically, yes. If you are going to allow users to post their own content, then it's impossible to police. The only realistic solution is to go after the people actually advertising and participating in the illegal acts.

I don't get it. Is it really that hard to not show advertisements for child prostitution? There appear to be some technical aspects of this that are not being made explicit in the article or the comments.

Basically, yes. If you are going to allow users to post their own content, then it's impossible to police. The only realistic solution is to go after the people actually advertising and participating in the illegal acts.

But not to go after those willing to profit from the activity without directly taking part? Again, this was targetted at publications that refused to do even the most basic level of screening on advertising for what is already an illegal activity in general(prostitution) to ensure that at least those engaging in it are not children.

Again, it wasn't well written, but it certainly is something that needs to be addressed.

Unless I'm mistaken, if you were to visit a webpage which then loaded a image of child pornography into your browsers cache (you don't even need to display the image for this to happen). Then your computer were confiscated and scanned by authorities, which allowed them to find such file, wouldn't you be charged of being in possession of child pornography? While I absolutely abhor CP, don't these two laws fit under the same category in this regard?

It is, in fact, absurdly easy to do this. The following line will load "nasty_picture" into your cache with no indication that it has happened:

An even more nefarious person would hide "nasty_picture" inside a tame picture using bad (i.e. easily detectable) steganography. This would make you look even more guilty as you were obviously trying to hide your illegal activities.

I don't get it. Is it really that hard to not show advertisements for child prostitution? There appear to be some technical aspects of this that are not being made explicit in the article or the comments.

You may have noticed that in the second comments post on this story, a reader posted a picture. In this case the picture was a cartoon, but what if it had been child pornography? Would Ars Technica be responsible for it? Or should the site review each post before it reaches the website, as some do?

I expect that the moderation of posts would cause inordinate levels of rage from Ars Technica readers that would accuse the site of censorship. But unless sites like this move to moderate all comments (which would be an enormous and expensive burden), then they cannot absolutely guarantee that they will be completely free of child pornography. They may be able to get rid of the offensive material within minutes, but during those minutes should they be considered the guilty party, as they would under this law?

I wonder if states bother to consult with any actual tech experts about these things first.

Im not sure what a tech expert could tell you in this case, this strikes me as entirely a legal question.

It's a tech question, because the reasons it's impossible/chilling are technical. Granted, you don't have to be all that technical to understand the problem, but there are still plenty of legislators who don't understand the internet at all. They are used to crazy laws being naturally restrained by the logistics of the real world, and don't understand that when you take away those logistics it's a lot harder to just "be reasonable".

The reason this law was stuck down were because it conflicts with Section 230 of the Communications Decency Act and the constitution generally, i dont see how consulting a tech expert would have helped in this case. Maybe there are plenty of legislators who dont understand the internet, but a tech expert is not going to be in any position to advise them when a law is unconstitutional or conflicts with another law. This was a legal question, getting the internet just doesnt enter into it, in my opinion.

From my stance, the reason a technical adviser would benefit the law makers when they are drafting laws like this is simply that if someone explained to the legislators the basics of the third-party "dumb tubes" of hosting sites (such as Google for searches), that would/should have gone far to help tailor the wording of this bill to where there was less of a chance of it running afoul of the Constitution/Communications Decency Act than they haphazard way they chose to go about it instead.

Given that many politicians are lawyers, it should be expected that they would have enough of a basic grounding in the law to where they should avoid obvious pitfalls of unConstitutionality (which, again in my opinion, is a major flaw with current lawmakers). With the advent of the Internet and digital age where so many of the old rules are not fully or sometimes not even remotely applying anymore, there needs to be additional expertise being offered at the front lines. Since we cannot reasonably expect all politicians at all levels of the government to get a good grounding in technology on top of their current alleged expertise in the matters of the law and public opinion, then we need to offer advisers that can help fulfill that role. Just as special task forces are formed for different areas that need to be addressed by the government for laws (environment, drugs, etc.), we need to look at implementing a larger technological role in that advisory committee. We as technological followers deserve to be represented in the lawmaking process the same as any other area of interest.

At least, that is my interpretation of this discussion topic. Take it or leave it as you wish.

I wonder if states bother to consult with any actual tech experts about these things first.

Im not sure what a tech expert could tell you in this case, this strikes me as entirely a legal question.

It's a tech question, because the reasons it's impossible/chilling are technical. Granted, you don't have to be all that technical to understand the problem, but there are still plenty of legislators who don't understand the internet at all. They are used to crazy laws being naturally restrained by the logistics of the real world, and don't understand that when you take away those logistics it's a lot harder to just "be reasonable".

The reason this law was stuck down were because it conflicts with Section 230 of the Communications Decency Act and the constitution generally, i dont see how consulting a tech expert would have helped in this case. Maybe there are plenty of legislators who dont understand the internet, but a tech expert is not going to be in any position to advise them when a law is unconstitutional or conflicts with another law. This was a legal question, getting the internet just doesnt enter into it, in my opinion.

From my stance, the reason a technical adviser would benefit the law makers when they are drafting laws like this is simply that if someone explained to the legislators the basics of the third-party "dumb tubes" of hosting sites (such as Google for searches), that would/should have gone far to help tailor the wording of this bill to where there was less of a chance of it running afoul of the Constitution/Communications Decency Act than they haphazard way they chose to go about it instead.

Given that many politicians are lawyers, it should be expected that they would have enough of a basic grounding in the law to where they should avoid obvious pitfalls of unConstitutionality (which, again in my opinion, is a major flaw with current lawmakers). With the advent of the Internet and digital age where so many of the old rules are not fully or sometimes not even remotely applying anymore, there needs to be additional expertise being offered at the front lines. Since we cannot reasonably expect all politicians at all levels of the government to get a good grounding in technology on top of their current alleged expertise in the matters of the law and public opinion, then we need to offer advisers that can help fulfill that role. Just as special task forces are formed for different areas that need to be addressed by the government for laws (environment, drugs, etc.), we need to look at implementing a larger technological role in that advisory committee. We as technological followers deserve to be represented in the lawmaking process the same as any other area of interest.

At least, that is my interpretation of this discussion topic. Take it or leave it as you wish.

Cher and xavin have pretty much covered it, but:A decent technical adviser could have explained the technical infeasability of the laws, both in terms of required "safe harbors" and the inapplicability to something as decentralized as the internet.

Regarding the first, there's a lot of content that's opaque to the page on which it's displayed. Take Ars; they don't know specifically what ads are shown. So, if a page shows adult ads, and one happens to be illegal under a local law, who's responsible? Because with the exception of the ISP (who shouldn't be getting involved beyond "Is our service working? Yup"), most the people involved are most likely not in the state. Even if the page happened to be hosted in-state (say, a VPS provider), would the colo/VPS/whatever host be responsible? They shouldn't be, because they're providing "hardware" (even if it's virtual), not serving the page themselves.

Regarding the second, there are too many possible oopsies. What if a WISP is based in a neighboring state, but serves in-state? Or a hotel has all their out of state sites VPNed to a head-end in state? Or the reverse, a hotel in-state has their connections centrally managed from out of state? Or these days, cellular data connections? The technical overhead to manage something like this, while technically available, is colossal; I would hazard it's functionally unfeasible.

Amazing that time and time again, the power to shape our technological world is rested in the hands of complete luddites who only care about scare-induced election victories...

Im not sure that is really an accurate description of what happened here. Although the efforts were misguided in this case, i think the desire to reduce child prostitution is not unreasonable. At a minimum, i dont think that the proponents of SB 6251 are necessarily luddites nor do I think its at all obvious that they only care about "scare-induced election victories". Its at least as possible that they were well intentioned but unthinking.

Its also worth noting that, in this case at least, " the power to shape our technological world" actually rests in the hands of the courts and people like the EFF who (in my opinion) over turned this portion of the bill. That was the point of the whole article, that the unconstitutional portions of that law got defeated.

Excellent reply. This bill wasn't an attempt at unconstitutional censureship, it was aimed specifically at certain sites like backpages.com that refuse to do even the minimal amount of screening of thier personals to try and keep pimps from selling children for sex. This has been a major problem in Washington and Oregon, and both states have been trying to combat it on multiple fronts.

I agree that this law was overly broad, and badly written. But the efforts need to continue and are worth pursuing. Unlike many 'think of the children' bills, this was not something completely unrelated that then had a child protection angle tacked on, this bill was explicitly about child sex advertising.

The sooner that they can catch these scum people responsible for putting these child pornography pics on the web, the better. It makes me sick to think that society has gotten this low for means of entertainment! Consider this: What if one of those kids were theirs that was being exploited? What would they do then? I betcha if the authority figures would think twice about that for a moment, they would change their tune in a hurry!! Exploitation of children can happen at anytime, any place, anywhere...that's the scary part of all of this..protecting our children MUST be in the front and not on the back burner. If we can't find some way to help those children out, then who will? It's NOT going to change by itself...Something to think about...

Something people also do not seem to understand was that this was not targetted at user content, it was targetted at paid advertising. Backpages.com specifically, which accepts money for ads and publishes them. Given that, its not unreasonable to expect them to screen those ads before they post them, seeing as they are getting paid and all.

But not to go after those willing to profit from the activity without directly taking part? Again, this was targetted at publications that refused to do even the most basic level of screening on advertising for what is already an illegal activity in general(prostitution) to ensure that at least those engaging in it are not children.

Once you do basic screening, then you lose safe-harbor and are on the hook for everything. Either you screen nothing and respond only to complaints, or you screen everything and proactively moderate. Proactive moderation is very expensive and manpower intensive for large sites, and runs into a lot of privacy issues too. It's not a simple subject and simple laws that ban certain kinds of content, no matter what it is, aren't going to work.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.